Protecting the other right to choose: the Hyde-Weldon Amendment.

AuthorGallagher, Judith C.

Consider a person who has undergone the necessary training to join the ranks of emergency medical technicians ("EMTs") who are committed to saving lives across the nation. (1) Now consider that this person is asked to respond to a non-emergency call to transport a patient from a hospital to an abortion clinic for an elective abortion. (2) The EMT informs her employer that transporting the patient to an abortion clinic for an elective abortion directly contravenes her moral convictions. In response, the employer immediately fires her.

This Note discusses the conflict surrounding a law designed to protect those who, like the EMT, are discriminated against because of their conscientious objections to abortion. The provision that affords this protection is known as the Hyde-Weldon Conscience Protection Amendment ("Hyde-Weldon Amendment," "Amendment," or "Hyde-Weldon"), (3) named after the two Republican Congressmen who sponsored the Amendment, Representative Henry Hyde of Illinois and Representative Dave Weldon, a Florida physician. (4) The Amendment, which passed in December of 2004 as part of an appropriations act, (5) prohibits the disbursement of Labor, Health, and Human Services-Education ("Labor-HHS-ED") funds to federal agencies, federal programs, and state and local governments that "discrimin[ate] on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." (6) In other words, it is anti-discrimination legislation. Now, a government agency wishing to force a hospital, doctor, or similarly situated health care entity to provide, pay for, or refer for abortions cannot do so if it wishes to receive federal funding. The provision is strictly limited to these circumstances. Representative Weldon noted "that the provision applies only when a 'healthcare entity' refuses to provide abortion services, and a government tries to force it to do so. 'Therefore this provision will not affect access to abortion or the provision of abortion-related information by willing providers."' (7)

Part I of this Note details some of the background to the Hyde-Weldon Amendment, specifically the gap in "conscience protection" provisions of federal law prior to Hyde-Weldon. Part II discusses the anomalous opposition to this anti-discrimination law, including legal challenges to the Amendment. In response to these challenges, Part III of this Note explains the constitutional legitimacy of the Hyde-Weldon Amendment as applied under Congress's spending power and the Tenth Amendment and argues that Hyde-Weldon survives facial challenges because it is not vague or overbroad. The Note concludes that the Amendment represents an important step in protecting the rights of health care workers who refuse to act contrary to the dictates of their consciences.

  1. BACKGROUND OF THE HYDE-WELDON AMENDMENT

    Other federal laws that afford certain conscience protections for health care entities existed prior to the enactment of the Hyde-Weldon Amendment. (8) Those laws, however, suffered from a perceived ambiguity and subsequent court challenges over the meaning of the words "healthcare entities." (9) It was successfully argued that the term "healthcare entities" applied only to individuals and not to institutions; (10) this distinction, in turn, opened the door for the implementation of coercive measures to be used to require institutional health care providers to participate in abortion. For example, in the case of Valley Hospital Ass'n v. Mat-Su Coalition for Choice, (11) the Alaska Supreme Court forced a "quasi-public" community hospital to provide abortions despite the hospital's policy and the sentiment of the community. (12)

    A hospital in St. Petersburg, Florida, felt the brunt of similar pressure. Bayfront Medical Center is a private hospital that leases land from the City of St. Petersburg for ten dollars a year. (13) In 1997, Bayfront joined a number of other hospitals in the area to form BayCare Health System and, by 1999, Bayfront had ceased providing abortions and had made other changes to meet requirements of two Catholic partners. (14) The City Council subsequently sued Bayfront, and eventually the two entered into a settlement. (15) As a part of the settlement terms, Bayfront was compelled to "remain free of all Catholic influence on its staff, policies, procedures and patients." (16)

    Other examples of such coercion abounded under the pre-Hyde-Weldon understanding of "healthcare entities." In New Jersey, there was an attempt to require a Catholic hospital to build an abortion clinic and pay for abortions. (17) In New York, a state comptroller and gubernatorial candidate threatened a Catholic-operated health maintenance organization ("HMO") with the loss of state contracts because it chose not to pay for abortions. (18) In addition, California recently enacted legislation that prohibits even nonprofit hospitals from ensuring that the property they sell is not used for particular types or levels of "medical services." (19)

    The narrowly defined meaning of "healthcare entities" enabled federally funded government entities to continue forcing institutional health care providers to participate in abortions. With the enactment of the Hyde-Weldon Amendment, the gap between individuals and institutions has been filled. The Hyde-Weldon Amendment provides that:

    None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions. ... [T]he term "health care entity" includes an individual physician or other health care professional, a hospital, a providersponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan. (20) The Amendment effectively eliminates the uncertainty in the definition of "health care entity" by explicitly including any kind of heath care facility, organization, or plan within the term. As a result, the Amendment forbids federally funded entities from coercing a broad range of health care providers.

  2. CURRENT CHALLENGES TO THE LAW

    There are several arguments challenging the legitimacy of the Hyde-Weldon Amendment. Senator Barbara Boxer, a California Democrat, and nine other senators articulated three of the most prevalent challenges in a letter signed in the fall of 2004. (21) The senators first argued that "[t]his provision ... would allow a broad range of health-care companies to refuse to comply with federal, state, and local laws and regulations pertaining to abortion services." (22) The letter next outlined the concern that "[t]his will mean that medical providers in hospitals and clinics across the country will likely be victims of demonstrations and intimidations as this provision allows that they be forbidden from providing abortion care to women who need it." (23) Finally, the senators maintained that the Amendment "is harmful to women and denies women access to reproductive health services." (24)

    These claims are not persuasive. In response to the first assertion, that Hyde-Weldon allows companies to refuse to comply with state and federal laws, the United States Conference of Catholic Bishops ("USCCB") observed that Senator Boxer's letter cites no laws to support that charge. (25) In fact, there is no federal law requiring health care providers to participate in abortions, and forty-seven states actually prohibit that type of coercion (generally through a state-enacted "Right of Conscience Act"). (26) Second, in response to the claim that hospitals will become the subject of intimidation because they are "forbidden" to provide abortions, the USCCB noted that, in reality, the Amendment "empowers no one to 'forbid' providers to provide abortions--rather, it leaves each provider the freedom to choose to do so or not." (27) Finally, the USCCB demonstrated that the claim that the Amendment denies women access to reproductive health services is inaccurate as well. The Amendment only addresses abortions, not all reproductive health services. Further, it does not prohibit health care institutions from providing access to abortion if they so choose. (28) The Amendment merely recognizes that providing access to abortion certainly can, and should, be done "without coercing the consciences of health care providers who disagree." (29)

    In addition to legislative opposition, Hyde-Weldon has been challenged on constitutional grounds. In the wake of the December 8, 2004, passage of the Appropriations Act that included the Amendment, (30) the National Family Planning and Reproductive Health Association ("NFPRHA") filed a lawsuit in the United States District Court for the District of Columbia seeking declaratory judgment that the Amendment is unconstitutionally vague and seeking an injunction prohibiting its implementation and enforcement. (31) At its core, the lawsuit "alleges that by requiring the state to refuse to protect women's constitutional rights in order to avoid stiff fiscal punishment, the provision impermissibly infringes on state sovereignty in violation of the 10th Amendment to the U.S. Constitution." (32) The premise of NFPRHA's argument is that the provision is more coercive than those previously considered by the courts. (33)

    Similarly, on January 25, 2005, California Attorney General Bill Lockyer filed a lawsuit in the Northern District of California, alleging that the Hyde-Weldon Amendment threatens billions of dollars coming to California under the Labor-HHS-ED appropriations bill. (34) As of March 2007, this case was still in pretrial motions in the district court.

    NFPRHA is a Washington, D.C.-based nonprofit association that represents providers, administrators...

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